the Full Report (PDF-671 KB)
the Briefing Packet (PDF-375 KB)
Reading Rooms: File Not Found
Guidance for the Public: File Not Found
Web Sites: Missing Links
One: Glossary of Agency Acronyms (PDF-57 KB)
Two: Glossary of Internet Terminology (PDF-57
Three: Web Site Review Data (PDF-81 KB)
Four: Web Site Review Template (PDF-128 KB)
Letters to E-Delinquents
Since its inception, FOIA has required agencies to make "available
for public inspection and copying" certain defined categories
of records. For the first thirty years agencies satisfied this
portion of the FOIA with "conventional reading rooms,"
physical locations where members of the public could review
paper copies of the records.
The E-FOIA Amendments revolutionized this approach by requiring
virtual reading rooms, accessible to anyone with a computer
and an Internet connection. (Note 8) In addition
to the long-required reading room records-"final opinions
[and] orders, made in the adjudication of cases," "statements
of policy and interpretations adopted by the agency," and
"administrative staff manuals and instructions to staff
that affect a member of the public"-E-FOIA established
a new fourth category of reading room records-"frequently
requested records." (Note 9) The electronic
posting of these four categories of records is typically called
Implementation of these requirements has been far from complete
across the government. In some cases agencies began to comply
just last year-nearly ten years after E-FOIA was enacted-only
after President Bush issued an executive order calling on agencies
to review their policies for public disclosure of information.
(Note 10) At least one agency, the Department
of Veterans Affairs (VA), admitted in its 2006 FOIA improvement
plan that it had not yet promulgated new regulations to implement
the 1996 amendments. (Note 11)
with all four categories of required records
ELECTRONIC READNIG ROOMS ARE NONEXISTENT OR INCOMPLETE
AGENCIES MAKE AVAILABLE ALL FOUR CATEGORIES OF RECORDS REQUIRED
Only 21% of the agencies and components reviewed
had on their FOIA Web sites all four required categories of
records, including: opinions and orders, policy statements,
staff manuals, and frequently requested records.
Noncompliance may be even greater than suggested by
this statistic because many agencies put only a portion of required
records from each of the four categories on their FOIA sites.
The three traditional categories of
reading room records-opinions and orders, policy statements,
and staff manuals-are absent from approximately half of all
agencies' FOIA Web sites. Congress intended to
prevent agencies from developing "secret law" by requiring
agencies to make available policies or precedent that bind the
public without their knowledge. Our reviews found that only
47% of agencies have opinions and orders accessible from their
FOIA sites, only 52% have policy statements, and only 48% have
It is difficult, if not impossible, to determine whether an
agency actually possesses records that fit in each of the categories.
In some cases, agencies that appear not to be in compliance
may in fact have satisfied the statute because their agency
does not produce records from a given category. In other cases,
the required records may be available somewhere on the agency
Web site but are not clearly identified and are not accessible
from the agency's FOIA page. Because a member of the public
confronted with a disorganized electronic reading room containing
documents that are not clearly identified would be unable to
locate the agency's definitive policy statement on a particular
issue, our reviewers concluded in such cases that the agency
was not in compliance. (Note 12)
REQUESTED RECORDS AND RECORD GROUPS OF INTEREST TO THE PUBLIC
ARE OFTEN MISSING FROM AGENCY FOIA WEB SITES
Only 59% of agencies have posted documents that
are identified as "frequently requested records" or
previously released records. The posting
of these materials or of categories of records that are of current
interest to the public is intended to alleviate FOIA processing
burdens by requiring agencies to post popular records online
where they are directly accessible to the public. Our reviews
suggest that agencies have failed to implement this provision
in a comprehensive way.
At certain large or decentralized agencies, there
is very poor compliance with affirmative posting obligations.
Even though it is difficult for members of the public to assess
whether agencies are posting frequently requested records, it
seems unlikely that large departments receiving tens of thousands
of FOIA requests each year do not receive multiple requests
for at least some documents, particularly those that relate
to current events or major policies or actions of the agency.
In some cases, it was apparent that only one or two components
contributed frequently requested records to agency electronic
reading rooms or only a few components maintained their own
electronic reading rooms. (Note 13) Such lack
of consistency and oversight across a large agency suggests
that some E-FOIA required documents fall through the cracks
and are never made available to the public.
SOLUTION: AGENCIES SHOULD INSTITUTE
POLICIES AND PROCEDURES FOR POPULATING AND MAINTAINING READING
SHOULD PROMULGATE POLICIES FOR IDENTIFYING AND POSTING RECORDS
OF INTEREST TO THE PUBLIC
The agencies' disregard for the electronic reading room requirements
is illustrated by the remarkable absence of policies and procedures
for developing and maintaining FOIA sites at federal agencies.
(Note 14) A review of all FOIA Improvement
Plans filed under E.O. 13,392 showed that, while several agencies
addressed the need to add required records to electronic reading
rooms, only a handful indicated that they had any specific policy
or guidelines in place for identifying required materials or
maintaining FOIA Web sites. (Note 15) Many
agencies included as one of their improvement plan goals a regular
review of their documents and sites to make sure they were affirmatively
and proactively disclosing information but did not outline what
criteria would be used. Only a handful of agencies included
the establishment of such criteria as part of their improvement
plan goals. (Note 16)
SHOULD AFFIRMATIVELY POST RECORDS OF INTEREST TO THE PUBLIC
When Congress enacted E-FOIA, it sought to reduce the burden
of FOIA requests by encouraging more affirmative and proactive
disclosure by agencies. Our survey showed that there are only
a few agencies that have taken this direction to heart. (Note
17) Compliance with the law requires systematic identification
of frequently requested records and regular updating of the
electronic reading room.
Reducing the influx of FOIA requests is not the only potential
benefit from wider government Web use. When news breaks that
is of urgent public interest, agencies can serve the public
by proactively posting relevant records without waiting for
FOIA requests. The National Aeronautics and Space Administration's
(NASA) FOIA site includes a large collection of materials related
to the loss of the Columbia Space Shuttle in 2003. According
to NASA's Annual FOIA Report, "[t]he influx of requests
caused this agency to create a separate electronic reading room
for documents that were responsive to those specific requests
about mission STS-107 and the Space Shuttle Program." NASA
also used its discretion to waive exemption (b)(5) and disclose
pre-accident records and other documents that might otherwise
have been privileged. (Note 18) Similarly,
the National Archives and Records Administration (NARA) recently
used proactive disclosure to make certain high-profile records-government
documents relevant to the confirmation hearings of now Supreme
Court Chief Justice John G. Roberts, Jr. and Justice Samuel
A. Alito, Jr.-available to the public in anticipation of an
influx of requests for these materials.
SHOULD ORGANIZE ELECTRONIC READING ROOMS TO MAXIMIZE PUBLIC
ACCESS TO REQUIRED MATERIALS ON THE WEB
Agencies should arrange electronic reading rooms
in an intuitive manner and index content throughout their Web
sites. Agencies should divide their reading rooms
into separate sections for each of the required record categories.
Uploaded records should be labeled plainly to reflect the contents
of the record. If, instead, there is a link to another area
of the Web site where required record(s) are located, that link
should be unambiguous and lead directly to a record or a browsable
or searchable database of required records. If the agency does
not maintain any records that fit within a given category, the
reading room page should indicate this fact. For example, Amtrak
specifically states in its handbook that it does not create
any opinions or orders because it does not conduct adjudications.
Other agencies, including the Tennessee Valley Authority (TVA),
list or reference each of the categories of required records
in their reading rooms but do not have any records posted under
one or more of the headings. A user can assume by this format
that the agency does not have any such records to post.
SHOULD BE A PRO-ACCESS, GOVERNMENT-WIDE DEFINITION OF WHAT CONSTITUTES
FREQUENTLY REQUESTED RECORDS
This universal definition should directly serve
the purposes of E-FOIA, including affirmatively opening government
to the public and reducing FOIA backlogs. DOJ
recommends that agencies employ a "rule of three"
to decide what records should be posted online: "when records
are disclosed in response to a FOIA request, an agency is required
to determine whether they have been the subject of multiple
FOIA requests (i.e., two or more additional ones) or, in the
agency's best judgment based upon the nature of the records
and the types of requests regularly received, are likely to
be the subject of multiple requests in the future." (Note
19) Most agencies have interpreted this guidance to mean
that there must be three or more requests for the same
record in order for it to qualify for affirmative posting. However,
requesters do not always specify a particular record in their
requests, so an agency like the Federal Emergency Management
Agency (FEMA) might get scores of requests for records related
to Hurricane Katrina records, yet still not conclude that those
requests concerned the same records. (Note 20)
DOJ has also interpreted the provision to exclude all documents
not created by the agency receiving the request, (Note
21) when Congress clearly did not intend such a limitation.
NOT USE CONCERNS ABOUT WEB SITE ACCESSIBILITY FOR PEOPLE WITH
DISABILITIES AS AN EXCUSE FOR NOT COMPLYING WITH E-FOIA
Some agencies have expressed a reluctance to post more information
in their electronic reading rooms out of fear that the files
will not be compliant with federal disability access law. Section
508 of the Rehabilitation Act, as amended in 1998, requires
government Web sites to be accessible to individuals with disabilities.
This generally is not a problem with HTML Web pages, which are
already in an accessible format, but can be relevant when agencies
upload records in PDF or another format. In many cases this
means a file must be modified before it is posted on the Web
site. Typically, additional information is added to the file
to ensure screen readers will able to understand what pictures,
charts, and graphs indicate.
The necessary modification adds an extra step to the proactive
posting of files in electronic reading rooms. It is generally
not an onerous step, yet it can lead to agencies simply refraining
from or delaying posting information that they are required
to make available under E-FOIA. This attitude defeats the spirit
of both FOIA and Section 508 of the Rehabilitation Act. One
law does not trump the other. Both strive to provide the public
with access to government information as a key component of
self-governance and a strong democracy. Yet, if one law-Section
508-is being used to stifle the availability of information
under another law-FOIA-then not only are people with disabilities
being deprived of information, the public at large also is suffering.
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8. As of November 1, 1997, federal agencies
were required to make available "by computer telecommunications"
all required reading room records created after November 1,
1996. 5 U.S.C. § 552(a)(2).
9. These are records that "have become
or are likely to become the subject of subsequent requests for
substantially the same records." 5 U.S.C. § 552(a)(2)(D).
10. See Executive Order no. 13,392, sec. 3(a)(iv).
The Executive Order and related DOJ guidance also call for "proactive
disclosure," whereby agencies make information available
at their own discretion, often with the goal of reducing the
number of FOIA requests received for that type of information.
Department of Justice, Office of Information and Privacy, Executive
Order 13,392 Implementation Guidance, FOIA Post, 2006.
11. Department of Veterans Affairs EO 13392
Improvement Plan, June 13, 2006.
12. For example, the National Park Service
(NPS) maintains a "Hot Docs" page, presumably serving
as the electronic reading room. It includes frequently requested
documents, reports, memoranda, and procedures, but the documents
are listed in no particular order and without any categorical
identification. Similarly, the Office of the Comptroller of
the Currency (OCC) has named its reading room "Popular
FOIA Requests." On this page, the OCC stores several types
of documents required by FOIA-orders and policies-but the documents
are included within a long list of additional materials such
as news releases, letters, agreements, and notices.
13. For example, the main Department of Labor
(DOL) Web site does not have an electronic reading room and
does not provide any required documents (except FOIA annual
reports). The only acknowledgement of the E-FOIA reading room
requirements is a link to public information that may be available
on several other sections of the Web site ("About DOL,"
"Newsroom," or "Statistics, Research & Publications"),
but no links to actual records. The main site links to the FOIA
pages for each of the components; but only some of these sites
have required records posted, and two major DOL components (Employment
and Training Administration and Employee Benefits Security Administration)
do not have their own FOIA sites at all.
14. As an initial step in our study, we filed
FOIA requests with 46 major agencies and components (those covered
in previous Archive audits) regarding their policies for posting
information in electronic reading rooms. We received an alarming
number (approximately 20) of responses to our initial requests
in which agencies claimed they had "no documents"
or specifically stated that they lacked any such policies; more
than 10 other agencies failed to respond to our request at all.
We subsequently filed a second, narrower FOIA request for specific
policies on the length of time the agencies maintain records
in their reading rooms; the responses were similarly unhelpful.
In the end, we concluded that few agencies have standard procedures
for establishing, organizing, and maintaining the FOIA portions
of their Web sites.
15. Only the National Archives and Records
Administration (NARA) specifically noted that it uses the "rule
of three" for identifying frequently requested documents,
although this is the approach that DOJ has recommended. NARA,
FOIA Improvement Plan under E.O. 13,392, October 2006.
16. For example, the U.S. Department of Agriculture
(USDA) indicated in its improvement plan that by the end of
2006, it would establish guidelines that could be used by all
of its components for affirmative disclosure. USDA, USDA
FOIA Review and Plan: FOIA Improvement Plan in Compliance with
E.O. 13,392, October 26, 2006. The Department of Education
(ED) plans to develop protocols by March 2007 to identify in
advance certain records or information that are likely to be
of interest to the public or the news media. ED will identify
grant and contract awards in advance that are likely to be the
subject of FOIA requests and proactively post these in its electronic
reading room. It plans to use the "rule of three"
to identify frequently requested documents and will start using
the FOIAExpress tracking software to assist in identifying multiple
requests for similar information. U.S. Department of Education
FOIA Plan, August 18, 2006.
The Department of Housing and Urban Development (HUD) will
begin requiring program offices to submit quarterly reports
on progress in posting documents in the electronic reading room
as well as lists of new documents being posted. HUD's plan indicated
it would establish protocols for immediate release of information
on successful grants and grant proposals. It would require FOIA
division offices to identify documents repeatedly requested
from various program areas. Program offices would be required
to submit reports to the Chief FOIA Officer with lists of specific
types of program documents that can be made available to the
public as well as a weekly report on "hot button issues"
that may result in an increase in FOIA requests, to allow HUD
to proactively review and post information on its Web site.
U.S. Department of Housing and Urban Development: Review,
Plan and Report on HUD's Freedom of Information Act Operations,
June 14, 2006.
Other agencies that planned to establish guidelines and policies
include: the Corporation for National and Community Service
(CNS), the Federal Election Commission (FEC), the Federal Trade
Commission (FTC), the Department of Interior (DOI), the DOL,
and the NCUA. Corporation for National and Community Service:
Freedom of Information Act Review Report and Improvement Implementation
Plan Pursuant to Executive Order 13,392, June 14, 2006;
Federal Election Commission, Executive Order 13,392: Summary
Report & Plan of the Federal Election Commission; Federal
Trade Commission, Plan for Improvement of the Administration
of the Freedom of Information Act Program at the Federal Trade
Commission, June 6, 2006; U.S. Department of Interior
Freedom of Information Act (FOIA) Report and Improvement Plan,
June 12, 2006; DOL, Executive Order 13392 Plan and Report,
June 14, 2006; and NCUA FOIA Program Review under Executive
Order 13392, June 13, 2006.
17. For example, the Central Intelligence
Agency (CIA) maintains a searchable database of reading room
records, posts the top twenty-five documents requested each
month and also categorizes the available frequently requested
records by subject, such as "Bay of Pigs" and "Human
Rights in Latin America." See http://www.foia.cia.gov/.
In 2004, the U.S. Coast Guard (USCG) began making available
two categories of records on its Web site-"Merchant Vessels
of the U.S. Data File" and "Marine Casualty and Pollution
Data Report"-because those types of records were frequently
requested (even if no one particular data report was ever requested
three or more times). Department of Homeland Security, Freedom
of Information Act Annual Report for Fiscal Year 2004, http://www.dhs.gov/xlibrary/assets/foia/privacy_rpt_foia_2004.pdf.
Similarly, the Department of State (DOS) has made available
in its extensive online database of records a number of special
collections and document sets, including more than 3000 transcripts
of telephone calls of former Secretary of State Henry Kissinger,
even though individual records in those collections may not
have been subject to multiple requests. See http://foia.state.gov/SearchColls/colhelp.asp.
The Food and Drug Administration (FDA) also maintains a comprehensive
electronic reading room linking to documentation of drug approvals,
enforcement actions, and other broad categories of information
that is of potential interest to the public. See http://www.fda.gov/foi/electrr.htm.
A few other examples of good proactive disclosure include: USDA
has placed an "electronic Purchase Cardholder system"
on their FOIA page to reduce FOIA requests. USDA, Freedom of
Information Act Annual Report FY 2000, February 2001, http://www.usda.gov/da/foia/foia2000.htm.
The Civil Rights Division of DOJ posted reports regarding Disability
Rights activity in response to a steady increase in FOIA requests
for the material. DOJ, FOIA Annual Report Fiscal Year 1998,
18. NASA, FY 2003 Annual Freedom of Information
Act Report, http://www.hq.nasa.gov/pao/FOIA/FY_2003_report.pdf.
19. Department of Justice, Freedom of
Information Act Guide: FOIA Reading Rooms, May 2004; see
also Department of Justice, Office of Information and Privacy,
FOIA Counsel Q&A: Frequently Requested Records,
FOIA Post, 2003.
20. Another problem with the interpretation
of the law is that agencies have excluded records from the disclosure
requirement that might otherwise be considered "frequently
requested" under the definition. For example, "if
an agency receives a second request, but then not a third one
until many months or even years later," reading room treatment
may not be required if it does not satisfy the statutory purpose
of diverting potential future FOIA requests. Department of Justice,
Office of Information and Privacy, FOIA Counsel Q&A:
Frequently Requested Records, FOIA Post, 2003.
21. Department of Justice, Office of Information
and Privacy, Congress Enacts FOIA Amendments, FOIA
Update, Vol. XVII, No. 4, 1996; see also Tankersley, "Introducing
Old Duties to New Technologies," at 27.
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